State v. Jacobs, 3169

• Docket Nº: No. 3169
• Citation: 575 P.2d 954, 1978 NMCA 13, 91 N.M. 445
• Case Date: January 31, 1978
• Court: Court of Appeals of New Mexico

Page 954

575 P.2d 954 91 N.M. 445 STATE of New Mexico, Plaintiff-Appellee,
v.
Lloyd Wayne JACOBS, Defendant-Appellant. No. 3169. Court of Appeals of New Mexico. Jan. 31, 1978.
Certiorari Denied Feb. 27, 1978.

Page 955

[91 NM 446] Barbara Nobel Farber, Santa Fe, Michael T. Garrett, Clovis, for defendant-appellant.

Toney Anaya, Atty. Gen., Suzanne Tanner, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

WOOD, Chief Judge.

Defendant, another male, and a female were charged with conspiracy to obtain Preludin, a controlled substance, by misrepresentation, fraud or forgery. Convicted, defendant appeals. We discuss: (1) mug shots to prove identity; (2) evidence of conspiracy and the coconspirator rule; (3) hearsay and the right of confrontation; and (4) motion to amend the docketing statement.

It is uncontradicted that two forged prescriptions were used in attempts to obtain Preludin from various pharmacies in Clovis. All the attempts were unsuccessful.

Mug Shots to Prove Identity

State's Exhibit No. 3 consists of two photographs of an adult male; one is a front view, the other is a profile. Information appearing in both photographs shows they were taken at the Clovis police department on February 25, 1977.

Page 956

[91 NM 447] The photographs show a long-haired, bearded person wearing what appears to be a T-shirt. The photographs are consistent with the testimony of various witnesses describing the male who attempted to purchase Preludin. In addition, various witnesses stated that the male represented in the photographs was the male attempting to make the purchase.

Defendant claims the admission and use of the photographs at trial was error. He argues: (a) a tainted identification; the "in-court identification based on a 'mug shot' photographic identification which was so suggestive that it could only encourage an irreparable misidentification of the Defendant constitutes a violation of Appellant's entitlement to due process"; (b) use of the mug shots tended to strip defendant of his presumption of innocence and suggest prior criminal activity; and (c) use of the mug shots had a clearly prejudicial impact upon the jury, and permitting their use was an abuse of the trial court's discretion.

All of the above claims disregard how the photographs were used at trial. The trial court pointed out that "the appearance of the defendant has drastically changed from the time he was here three weeks ago as a witness." Pharmacist Bell, asked by the female to fill one of the forged prescriptions, testified that two long-haired, bearded men entered his store with the female. He could not identify anyone in the courtroom as being one of the men. However, he did identify Exhibit No. 3 as the picture of one of the men who came in with the female. Specifically, Bell's testimony did not include any in-court identification of defendant; his testimony went no further than to identify a photograph. There is nothing suggestive of misidentification in the testimony that went no further than stating the exhibit was the picture of the man who entered the store.

Use of the exhibit did not destroy any presumption of innocence or suggest prior criminal activity. The information appearing in the photographs is consistent with the testimony of police witnesses that the photographs were taken after defendant's arrest on the charge for which he was being tried.

There was no abuse of discretion in admitting photographs showing defendant's appearance at the time of his arrest when defendant had drastically altered his appearance subsequent to arrest. The photographs confirmed the descriptions given by various witnesses and were relevant to the identity of the offender.

Admission of, and use of the photographs was not error. State v. Mordecai, 83 N.M. 208, 490 P.2d 466 (Ct.App.1971); see State v. Cumbo, 9 Ariz.App. 253, 451 P.2d 333 (1969). The mug shot discussion in State v. Tapia, 79 N.M. 344, 443 P.2d 514 (Ct.App.1968) is not in point.

After receipt of testimony that the offender was the person portrayed in the photographs, the State established identity through evidence that the defendant was the person appearing in the photographs. Compare State v. Miller, 79 N.M. 117, 440 P.2d 792 (1968).

Evidence of Conspiracy and the Coconspirator Rule

The defense put on no evidence; it rested at the close of the State's case-in-chief. Defendant then moved for a directed verdict which was denied. On appeal, defendant asserts this was error because the evidence of conspiracy was circumstantial and this circumstantial evidence was insufficient to establish defendant's guilt beyond a reasonable doubt. This claim not only disregards trial court proceedings, it disregards applicable New Mexico law.

Defendant's argument concerning circumstantial evidence is that it fails to exclude every reasonable hypothesis of innocence. The circumstantial evidence rule is no more than a special application of the rule concerning reasonable doubt; it is not independent of the question of whether there is substantial evidence to support the verdict. Even if the evidence is circumstantial, if the circumstantial evidence substantially supports the verdict, the verdict will not be set aside. State v. Adams,89

Page 957

[91 NM 448] N.M. 737, 557 P.2d 586 (Ct.App.1976); see State v. Bell, 90 N.M. 134, 560 P.2d 925 (1977).

The evidence of conspiracy is not entirely circumstantial. There is testimonial, State v. Hinojos, 78 N.M. 32, 427 P.2d 683 (Ct.App.1967), or direct, see U.J.I.Crim. 40.00, evidence of conspiracy. This testimony came from the female and, in itself, substantially establishes the conspiracy.

Defendant's appellate claim is that the female's testimony should not be considered until other evidence established a prima facie case of conspiracy. See State v. Armijo, 90 N.M. 12, 558 P.2d 1151 (Ct.App.1976). No such claim was raised in the trial court. The motion for directed verdict asserted only "that the State has failed to prove its case as charged." This motion was properly denied because the female's testimony established the conspiracy and defendant made no objection to this testimony. The motion for directed verdict did not assert that, if the female's testimony were not considered, the evidence of conspiracy was insufficient. This issue not having been raised in the trial court, it is not before us for review. State v. Orfanakis, 22 N.M. 107, 159 P. 674 (1916).

On the merits, the appellate claim shows a misunderstanding of the coconspirator rule. The rule involves the admissibility of declarations of a coconspirator. State v. Armijo, supra, questioned, but did not decide, whether the rule also applied to "acts" of a coconspirator. The rule, its reason, and the exclusion of "acts" from the rule is discussed in Anderson v. United States, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974) as follows:

The doctrine that declarations of one...